Samuel Gompers to Woodrow Wilson

Since the important matter concerning which, under date of March 14, I wrote you, is still a vital issue which must be determined in the near future, and I am still unavoidably prevented from seeking the privilge of a personal conference with you, yet as I am solicitous for the welfare of those whose interests I represent, the urgent necessity of the situation impels me to present in writing for your consideration further reasons why the enactment of legislation removing the working people as such from prosecution under and from the operation of the Sherman Antitrust law would be in the interest of justice and freedom, and a great service to humanity. I venture to ask your forbearance, notwithstanding the length of this letter, because of the encouragement in your reply to my first letter, and sincerely trust and anticipate this letter will also receive your careful consideration.

Without further explanation, I shall endeavor to set forth the resaons why the working people seek this legislature relief which the Democratic party has twice incorporated in its national platform pledges, and which the Progressive party made part of its platform declarations in which the economic and social welfare of the workers was given such conspicuous importance.

The Democratic platform of 1908 contained the following declaration, which was repeated in 1912:“The expanding organization of industry makes it essential that there should be no abridgment of the right of wage–earners and producers to organize for the protection of wages and the improvement of labor conditions to the end that such labor organizations and their members should not be regarded as illegal combinations in restraint of trade.”In your speech accepting the nominatinon of the Democratic party you took occasion to declare:“The working people of America — if they must be distinguished from the minority that constitutes the rest of it — are, of course, the backbone of the nation. No law that safeguards their life, that improves the physical and moral conditions under which they live, that makes their (the working people of America) hours of labor rational and tolerable, THAT GIVES THEM FREEDOM TO ACT IN THEIR OWN INTEREST, and that PROTECTS THEM WHERE THEY CAN NOT PROTECT THEMSELVES, CAN PROPERLY BE REGARDED AS CLASS LEGISLATION OR AS ANYTHING BUT A MEASURE taken in the interest of the whole people, whose partnership in right action we are trying to establish and make real and practical. It is in this spirit that we shall act if we are genuine spokesmen of the whole country.”The Progressive platform contained the following declarations:“The Progressive party, in order to secure to the people a better administration of justice, and by that means bring about a more general respect for the law and the courts, pledges itself to work unceasingly for THE REFORM OF LEGAL PROCEDURE AND JUDICIAL METHODS.“WE BELIEVE THAT THE ISSUANCE OF INJUNCTIONS IN CASES ARISING OUT OF LABOR DISPUTES SHOULD BE PROHIBITED WHEN SUCH INJUNCTIONS WOULD NOT APPLY WHEN NO LABOR DISPUTES EXISTED.“WE BELIEVE ALSO THAT A PERSON CITED FOR CONTEMPT IN LABOR DISPUTES, EXCEPT WHEN SUCH CONTEMPT WAS COMMITTED IN THE ACTUAL PRESENCE OF THE COURT, OR SO NEAR THERETO AS TO INTERFERE WITH THE PROPER ADMINISTRATION OF JUSTICE, SHOULD HAVE A RIGHT TO TRIAL BY JURY. * * *“WE FAVOR THE ORGANIZATION OF THE WORKERS, MEN AND WOMEN, AS A MEANS OF PROTECTING THEIR INTERESTS AND OF PROMOTING THEIR PROGRESS.”

In the last hours of the Sixty-second Congress, Mr. Taft, then President, returned the Sundry Civil bill to the House of Representatives without his approval. Mr. Taft gave as his sole reason for his veto a proviso to the section entitled “Enforcement of the Antitrust laws” which is as follows:

“Provided however, That no part of this money shall be spent in prosecution of any organization or individual for entering into a combination or agreement having in view the increasing of wages, shortening of hours or bettering the conditions of labor, or in any act done in furtherance thereof NOT IN ITSELF UNLAWFUL. Provided further, That no part of this appropriation shall be expended for the prosecution of producers of farm products and associations of farmers who cooperate and organize in an effort to and for the purpose to obtain and maintain a fair and reasonable price for their products.”

Mr. Taft denounced this provision as “class legislation of the most vicious sort.” He stated that if this provision were “enacted as substantive law and merely as a qualification upon the use of moneys appropriated for the enforcement of the law, no one, I take it, would doubt its unconstitutionality.” He affirmed that the proviso was so subtly worded as to conceal its real effect, “so that any organization formed with the beneficent purpose described in the proviso might later engage in a conspiracy to destroy by force, violence or unfair means any employer or employes who failed to conform with its requirements, and yet because of its originally avowed lawful purpose it would be exempt from prosecution so far as prosecution depended/upon the moneys appropriated by this act, no matter how wicked, how cruel, how deliberate the acts of which it was guilty.”

Mr. Taft quoted with approval a portion of the speech of Representative Madison in which he said:“And all in the world that this antitrust act does is to apply to him (the workingman) that simple and proper rule that he, too, as well as the creators of trusts and monopolies shall not obstruct the natural and ordinary course of trade in the United States of America.”

These assertions, which determined the course of Mr. Taft upon a measure fraught with so great consequences to millions of workingmen, are by no means convincing, conclusive, or even sound. Since the question/at issue is of so great moment, I venture to present to you, somewhat at length, the fundamental principles which are at variance with his line of thought and veto.

This legislation is not what can betermed “class legislation” if that expression is interpreted in the disparaging sense implied by the opposition. Practically all legislation is group or class legislation. Universal categories of the Kantian type can deal with only metaphysical principles. Specific laws deal with groups clearly differentiated from others and possessing common characteristics. Unlike quantities, groups or conditions, can not be subjected to the same controls, if justice is the end sought. It follows, then, that special legislation is necessary and just, provided, however, that the discrimination is based upon correct principles of differentiation. This fundamental truth has been upheld by the judiciary in the following decisions:“Legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects all persons similarly situated, is not within the amendment (the fourteenth amendment).” (Barbier v. Connolly Laundry Case 113 U. S. 27; United Railway Company v. Beckwith, 129 U. S. 26, and cases cited therein; Railroad Cattle damage case.)“The inhibitions of that section (section 1 of the fourteenth amendment) are laid upon the action of the several states and have no reference to legislation by Congress.” (Chinese Summary trial, presumption of guilt; In re Sing Lee, 54 Fed. Rep., 337.)“The equal protection of the law * * * does not forbid classification. * * * The power of classification has been upheld whenever such classification proceeds upon any difference which has a reasonable relation to the object sought to be accomplished.” (Atchison Railway v. Matthews, 174 U. S. 103. See also Kentucky Railroad Tax cases, 115 U. S., 321)“Classification must also rest upon some difference which hbears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.” (Gulf, Colorado and Sante Fe Railway v. Ellis, 165 U. S., 155.)The fact, then, that organizations not for profit but for securing humanitarian benefits for the workers, would be exempt from the application of the provisions of the Sherman Anti–trust law would not constitute a reason for declaring the measure unconstitutional — such a decision would depend upon whether there is a real and inherent difference between the voluntary associations of working people, (organized not for profit,) and monopolies of combinations whose sole purpose is profit; or upon whether the application of the law to the two kinds of organizations would produce similar results.Such differences do exist. Organizations of labor have their origin in human need; they seek human welfare and betterment; they have to do with human labor power. Capitalistic monopolies have their origin in desire for great profits; they seek economic control and the elimination of competitive rivals; they deal in material things, the products of labor, wealth. Between wealth and labor there is a vital and fundamental difference, an understanding of which is essential to those upon whom falls the responsibility of dealing with matters influencing the freedom of men. Wealth consists in material things, which are external, useful and appropriable. Wealth is that which a man has, not what he is. To classify skill, knowledge, labor power as wealth is an error that has crept into the thinking of some economists and political scientists. It is an error conducive to grace injury to the working people. These attainments or attributes are not possessions of the individual; they are the individual and cannot be separated from personality. Cultivation of powers and ability increases the potential labor power, increases and enriches the resourcefulness and efficiency of the individual. But these things are subjective, immaterial, and are not in themselves wealth. The individual may be able, powerful, and therefore fortunate, but it does not necessarily follow therefrom that he is wealthy. The wealth which he may produce is separate and distinct from himself. It follows, then, that to apply to voluntary associations of working people (commonly called labor organizations) which are concerned with individuals and their powers, the same regulations as are applied to organizations manipulating the products of labor would lead to mischievous results and perversion of justice. Legislation recognizing the inherent difference between these two kinds of organizations could not be condemned as unconstitutional on the charge of unjustifiable discrimination.After considering the charge of “class legislation” from the angle of “difference of kind,” it remains to take up the matter as to whether the law would produce simlilar effects upon both kinds of organizations. The effect upon trusts and monopolies of the application of the Sherman Antitrust law is an open question, the discussion of which is not essential to the matter in hand. Suffice it to say, the law aims at the prohibition of conspiracies, monopolies, or combinations in restraint of material things, the re–establishment of competitive conditions in material things. So far as the law has been invoked against labor organizations, it has been directed against two kinds of collective action — the withholding of labor power and the withholding of patronage. It is at once evident that both labor power and patronage are not wealth or material things to which that law was intended to apply, but are subjective, personal. If labor power and patronage are treated as something appropiable by another, something to be controlled as property, then so much of the individual no longer belongs to himself. The individual, like a nation, can not exist part slave and part free — it must be either one or the other.A free man has the right to bestow or withhold his labor power and his patronage whenever or wherever he may wish. To gainsay this right is to deny freedom. Since no individual is given any legal or inherent proprietary right in a man’s labor power or patronage, he cannot be aggrieved or afforded grounds for action when they are withheld from him. Labor power and patronage are what make the individual workman effective and forceful — they constitute his principal protection and means of self–expression. They must be guarded as the foundation of individual freedom, the precious birthright of a man free to be himself and to possess his own soul. Not only must the theoretical right to bestow or withhold labor power and patronage be maintained, but this must be given reality and effectiveness by permitting men to pursue lawful courses of action in exercising this right. If the end is lawful and worthy, then the means for attaining that end must also be recognized as legal and necessary. Justice must be reasonable and practical. There has been an attempt — it matters not whether consciously or unconsciously — to build up a legal fiction which temnds to nullify these rights by discrediting and misrepresenting the means by which they are exercised.

The legal mind is strongly influenced by the traditional element of the law precedents in its administration. It is concerned for consistency, for continuity of even and antiquated concept. Consequently, the old legal concept that labor unions and their various devices for making their demands effective are either conspiracies or partake of the characteristics of conspiracies, is very hard to dislodge from the legal mind and continues to influence many decisions and arguments. Lawyers of this type speak the orthodox vernacular and their curiously twisted phrases take on the semblance of accepted principles and lines of reasoning. Yet the heterogeneous elements of their legal fictions appear somewhat incongruous and mystifying to the layman. They speak of an unlawful combination or conspiracy to accomplish a lawful purpose, and of a lawful combination to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful, by criminal or unlawful means, as being equally criminal. Then by using one or more of these hypotheses, together with the use of precedents based upon the principle that labor combinations and collective action are conspiracies, lawyers ahnd judges have restricted labor organizations in their elemental, normal activities intended to promote the welfare of those who toil. In this connection permit me to call your attention to these memorable words of Junious upon the nature of precedent:“If an honest man, and, I may truly affirm, a laborious zeal for public service has given me any weight in your esteem, let me exhort and conjure you never to suffer an invasion of your political constitution, however minute the instance may appear, to pass by, without a determined, persevering resistance.

ONE PRECEDENT CREATES ANOTHER. THEY SOON ACCUMULATE, AND CONSTITUTE LAW. WHAT YESTERDAY WAS FACT, TODAY IS DOCTRINE.

Examples are supposed to justify the most dangerous measures, and where they do not suit exactly, the defect is supplied by analogy. Be assured that the laws, which protect us in our civil rights, grow out of the constitution, and that they must fall or flourish with it.”This legal fiction of theoretical justice and equal protection of all men under the law does not accord with the facts as experienced by those upon whom the burden of the world’s heavy toil has fallen. This legal fiction represents what might be called visible or outward justice. But greater and more real than this is the invisible or real justice that is not found by theory or convention, but goes straight to the heart of things, takes into account facts and modifying conditions, and is not circumscribed and bound by conventions and precedents. That is the justice too often gagged, bound, and well–nigh stifled by lawyers. That is the justice that must be rescued and established by our statesmen, if liberty and freedom are to be maintained. This was the course advocated by Edmund Burke in regard to the American colonies, the policy which you admirably express in the History of the American People thus:

“Mr. Burke admitted that his theory was not a theory for the strict lawyer; it was a theory for statemen for whom fact must often take precedence of law.”

Law and legal interpretation have not divested themselves of all the influences of that time when men were not free and were looked upon as chattels and property. They have not yet come under the sway of the newer expressions of the social conscience which Professor Merriam has aptly termed “social politics.”Hostile lawyers, lawyers paid to present the cases of their clients, judges under domination of the employer’s and the legalist’s viewpoint, have misrepresented and perverted acts and purposes of the workingmen to make them appear criminal and destructive, whereas the guiding purpose animating the labor movement is not destruction but construction, completion and perfection of general welfare. It is charged that workingmen conspire to destroy business when they withhold labor power or patronage, pending the securement of specific rights. As a matter of fact, destroying business would frustrate the end sought. This legal fiction, called destroying business, arises out of confusing the physical property with the immaterial something called good will which is dependent on reputation and patronage. This latter emanates from individuals outside business, it has a direct relation to business, but it is not business. For detracting from this, either individually or collectively, workingmen cannot any more be charged with destroying business than can competitors who build up their business at the expense of others engaged in the same line. Workingmen have the right to pursue policies for their welfare which may entail financial losses upon employers. To be sure, the employer has a right to his property and a right to do business, but that is a general right, not a specific one. He is not guaranteed the right to be protected against all hazards in a particular business. That, I take it, is the principle involved in the reduction of tariff, even though that may mean some decrease in the employer's profits.

Whenever the activities of organized labor have raised new issues and problems, or brought precedents into question, rather than adjust to meet the new ideas and the new conditions and blaze out newer and straighter paths to justice, judges and lawyers have applied the well–nigh threadbare dictum, “criminal conspiracy”, following the old legal maxim, “When in doubt, hang the prisoner,” figuratively if not literally. Legal fiction and popular misunderstanding have placed restrictions upon individual freedom through which it is hard to break. Since the Sherman Antitrust law has been so interpreted as to increase these limitations, Labor has found the right to unite for mutual protection but a mere legalistic expression of an ideal state. The law as now interpreted has the effect of stultifying labor organizations and prohibiting the exercise of necessary powers. What we seek is not special privilege, immunity from prosecution for crimes, but the right to do those things necessary to organizations accomplishing a real work for human workers.In regard to the second point that Mr. Taft made, namely, that the provision if enacted as substantive law would be regarded as unconstitutional, your attention is respectfully called to the exemption provision of sections imposing a tax on corporations embodied in the Tariff bill of 1909, approved and signed by the then Preisident, Mr. Taft. That provision is as follows: “Provided, however, That nothing in this section contained shall apply to labor, agricultural or horticultural organizations, or to fraternal beneficiary societies, orders, or associations operating under the lodge system, and providing for the payment of life, sick, accident, and other benefits to the members of such societies, orders, or associations, and dependents of such members, nor to domestic building and loan associations, organized and operated exclusively for the mutual benefit of their members, nor to any corporation or association organized and operated exclusively for religious, charitable, or educational purposes, no part of the net income of which inues to the benefit of any private stockholder or individual.”

In Flint v. Stone Tracy & Co., the Supreme Court of the United States, in rendering its decisions on the validity of the proviso excluding Labor and other organizations from this corporation tax, anticipated the objection raised by Mr. Taft in his recent veto. The court decided thus:“As to the objection that certain organizations, labor, agricultural and horticultural, fraternal and benevolent societies, loan and building associations, and those for religious, charitable or educational purposes, are excepted from the operation of the law, we find nothing in them to invalidate the tax. As we have had frequent occasions to say, the decisions of this court from an early date to the present time have emphasized the right of Congress to select the objects of excise taxation, and within this power to tax some and leave others untaxed, must be included the right to make exemptions such as are found in this act.”That there is nothing novel or pernicious in provisions of this nature is further proven by the Tariff Bill, H. R. 10, which is at this time under consideration by Congress. That bill contains, in Section II, dealing with the income tax, the following provision:

“Provided, however, That nothing in this section shall apply to labor, agricultural, or horticultural organizations, fraternal and beneficiary societies, orders or associations operating under the lodge system and providing for the payment of life, sick, accident, and other benefits to the members of such associations and dependents of such members, nor to domestic building and loan associations organized and operated exclusively for the mutual benefit of their members, nor to any corporation or association organized and operated exclusively for religious, charitable, or educational purposes, no part of the net income of which inures to the hbenefit of any private stockholder or individual.”Nor is the this the only exemption — all annual incomes under $4,000 are exempt; the proceeds of life insurance policies paid upon the death of the person insured shall not be included as incomes; savings banks not conducted for profit are exempt; the tax itself is graduated, making the burden not mathematically but really equal, and in proportion to ability to pay; the compensation of the present President of the United States during the term for which he has been elected, and of judges of the Supreme and inferior courts of the United States now in office, and the compensation of all officers and employes of a State or any political subdvision thereof are exempt. Life insurance companies of the mutual type must include dividends paid to policy holders. This they claim is payment on gross income instead of net income, yet the caucus decided that this did not constitute a discrimination between mutual and other insurance companies. In fact, all excise taxation is based upon class differentiations. The question to be considered is not whether a distinction is made, but whether the distinction is founded upon a real difference and whether the results from recognizing the distinction would promote the welfare of the greatest number. The next objection raised by Mr. Taft in his veto is that the proviso is so subtly worded as to conceal its full effect, “so that any organization formed with the beneficent purpose described in the proviso might later engage in a conspiracy to destroy by force, violence or unfair means any employer or employes who failed to conform to its requirements, and yet because of its originally lawful purpose it would be exempt from prosecution so far as prosecution depended upon the moneys appropriated by this act, no matter how wicked, how cruel, or how delivberate the acts of which it was guilty.”

It is very evident from this that Mr. Taft is among those who believe that the principal activities and methods of organized labor are destructive and subversive to orderly progress. Quite the contrary is true. To be sure, things have been done by some connected with the labor movement which all right thinking people deplore. These excresences have been featured by the sensational and hostile press. The undue prominence given them tends to minimize or obscure the constructive, permanent, fundamental work of the movement. This side is often wholly hidden from those whose lives do not come in contact with those who work in the ditches, the mines, the factories, and wherever the burden of toil is borne by those who cannot enter the easier places. This labor movement is a real, vital expression of human need and hope; it must conform to life as it is, and though it hopes to establish better things, it cannot deal with men and present conditions as though they were ideal. The men and women in the movement are human beings with all the passions, frailties, and possibilities of human nature. Is what they are and do not due, in large measure at least, to the existing social conditions? If they have at times done that which they should not, it has not infrequently been hbecause they had been made desperate by denial of justice, and because protective measures had been declared illegal by those in judicial and political control. As the thoughts of men have widened, practices and acts which had been held illegal, have been legalized. The working people have won many such victories; they have secured the right of collective action. By the adoption of this proviso under consideration they seek to establish recognition of the right to make effective collective action, not in itself unlawful.Our opponents simulate great alarm as to the disastrous effects of the boycott. But is that such a new and anarchistic device? Quite the contrary. It is a weapon that has been successfully used for good purposes by men of all times. Our revolutionary fathers used it most effectively to defeat what they considered the unjust demands of the Ehnglish Government. Will you pardon another personal reference, for the placards as reproduced in the second volume of your “History of the American People”, illustrate my point so nicely? The one on page 159 is an “unfair list;” on page 162 is a “conspiracy” agreement; on page 173, an unmistakable boycotting poster, though conceived in patriotism and ended reverently with “for ever and ever."